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BY ELI FREEDBERG AND EMILY HAIGH ON AUGUST 24, 2018Republished with permission from Littler Mendelson, P.C.

On August 23, 2018, New York Governor Andrew Cuomo issued an executive order that contains a model policy, model complaint form, and model training in accordance with the state’s new sexual harassment law. As we reported in April and August of this year, New York State recently passed a number of sexual harassment-related initiatives in the state’s 2018-2019 budget. For example, New York State now requires employers to provide all employees with annual anti-sexual harassment and discrimination training. The law also requires employers to promulgate written anti-sexual harassment policies to employees. While the law indicated an effective date of October 9, 2018 for these components of the law, it did not contain specific examples of training programs or policies that employers will be required to adopt. Instead, the law indicated that the Department of Labor “shall consult with the Division of Human Rights to create and publish” the model training and model policy. The executive order provides these examples, meaning the October 9, 2018 compliance date stands.

Specifically, three components of the state law take effect on October 9:

First, every employer must either adopt the new model sexual harassment policy or revise its own policy that equals or exceeds the minimum standards provided by the model. The policy must be provided to all employees in writing. The draft model policy can be found here.

Second, every employer must either adopt the new model sexual harassment complaint form or draft its own complaint form and include it as part of the employer’s sexual harassment policy. The draft model complaint form can be found here.

Third, every employer must either utilize the model sexual harassment prevention training program or establish a training program for employees that equals or exceeds the minimum standards provided by the model training. This training must be provided to all employees on an annual basis. The draft model training can be found here.

These publications are draft documents and the N.Y. Department of Labor or the New York State Division on Human Rights will be accepting comments on the proposed policies and training materials, meaning the requirements are subject to change. Comments must be submitted on or before September 12, 2018. New York State employers are therefore not likely to receive final guidance on the format of the required policies and training materials until immediately before the law goes into effect.

Model Policy Takeaways

Several sections of the draft model sexual harassment policy go above and beyond the requirements of the law and other portions of the draft policy conflict with other laws or other agencies’ guidance. For example, the draft policy provides that New York State employers must maintain “a zero-tolerance policy for any form of sexual harassment.” This directly conflicts with guidance provided by the U.S. Equal Opportunity Employment Commission, which has cautioned against implementing “zero tolerance” policies because inflexible, one-size-fits-all approaches rarely work.

A second example is that the model sexual harassment policy provides that employers will ensure that “complainants, witnesses and alleged perpetrators will be accorded due process to protect their rights to a fair and impartial investigation.” Although the legislation referenced providing “due process” to the participants in an investigation, this model policy fails to clarify what that means; private sector employees do not have constitutional due process rights, and it is unclear what constitutes “due process” in this context.

Third, the model sexual harassment policy states that employer investigations “should be completed within 30 days.” There is no basis in any law for requiring the completion of investigations in this short time frame. Likewise, with respect to the model training, the draft provides that all new employees should complete the training within 30 calendar days of their start date and that employers “should provide employees with training in the language that is spoken by their employees.” The law does not require that training be provided on such an expedited time frame and in fact mandates that all employees be trained within a year of the effective date of the law.

Most employers will likely take issue with at least a few of the details within the model policy and model training. Accordingly, we strongly recommend that each employer carefully review these documents and submit comments to convince the Department of Labor or the New York State Division on Human Rights to narrow the scope of these materials.